Skip to main content

SC clarifies right of lessee under a valid lease

Secured creditor cannot take over possession of the secured asset with the lessee under a valid lease

A large batch of appeals moved by tenants of properties mortgaged to banks was heard by the Supreme Court. In these 75 cases, led by Harshad Govardhan vs International Assets Reconstruction Ltd, the property owners who had taken loans did not repay the amounts leading to Sarfaesi proceedings.


The major issue in the present case was whether a mortgagee of a previously leased out property (unknown to the creditor) claim possession of the property upon the failure of the mortgagor in clearing his debts within the stipulated time. The bench comprising of Hon'ble Justice A. K. Patnaik and Hon'ble Justice Gopala Gowda,primarily ruled that without the determination of a valid lease, the possession of the lessee is lawful and such lawful possession of a lessee was to be protected by all courts and tribunals. Discussing the primary need of determining the lease, the Court required that a lessee could either surrender or resist the possession of the property by the secured creditor. In the former case, the lease would stand determined even if the property be in the legal possession of the lessee but in the latter case, the authorized officer shall refer the dispute to the Chief Metropolitan Magistrate who shall then, in accordance to the principles of natural justice, validate the lease and accordingly award possession of the property to the lessee or the secured creditor. Further, the Court set aside a Judgment of the Bombay High Court and the views taken in the case of M/s Trade Well v. Indian Bank [2007 CRI. L.J. 2544], observing that the appellants, however, had no remedy under the SARFAESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest) Act for moving the Debts Recovery Tribunal. Concluding, the Court set aside the previous orders passed by the Chief Metropolitan Magistrate asking of him to pass fresh orders in accordance with the Court's judgment and any other law that may be relevant, after hearing the appellants and the secured creditors.

Interestingly, the Hon'ble Supreme Court has added a new twist in the CMM/DM application issue. The order went on to say "................We have already held that Section 13 of the SARFAESI Act does not provide that the lease in respect of a secured asset will get determined when the secured creditor decides to take the measures in the said section. Hence, possession of the secured asset from a lessee in lawful possession under a valid lease is not required to be taken under the provisions of the SARFAESI Act and the Chief Metropolitan Magistrate or the District Magistrate, therefore, does not have any power under Section 14 of the SARFAESI Act to take possession of the secured asset from such a lessee and hand over the same to the secured creditor. When, therefore, a secured creditor moves the Chief Metropolitan Magistrate or the District Magistrate for assistance to take possession of the secured asset, he must state in the affidavit accompanying the application that the secured asset is not in possession of a lessee under the valid lease made prior to creation of the mortgage by the borrower or made in accordance with Section 65A of the Transfer of Property Act prior to receipt of a notice under sub-section (2) of Section 13 of the SARFAESI Act by the borrower.

So from now on, the application to the Chief Metropolitan or District Magistrate will now have to carry the above statement apart from those specified by the Section 14 of the ACT.

 [Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd. & Ors., Criminal Appeal No. 736 of 2014, decided on April 3, 2014]

Comments

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...

Valuation Report of Jewellery once made is effective for Four Assessment Years

The division Bench of the Delhi High Court in Pr.Commissioner of Wealth Tax vs. Raghu Hari Dalmia held that a valuation report made by a registered valuer once adopted shall be in effect for four assessment years unless an event has occurred whereby the value is increased or decreased. The High Court made it clear that the event of “search” under Section 132 of the Income Tax Act, 1961 cannot compel the assessee to undertake a fresh valuation.

Mere Agreement To Sell The Leased Property To Tenant Would Not Terminate Landlord-Tenant Relationship

In CIVIL APPEAL Nos. 1237­1238 OF 2019, Dr. H.K. Sharma vs Shri Ram Lal, the tenant had objected against the eviction suit filed by the landlord, claiming that the landlord-tenant relationship between them had ceased to exist by virtue of an agreement for sale entered between them and that he has already paid some money in advance based on the agreement. The tenant contented as the landlord-tenant relationship did not exist, the landlord cannot evict him. The matter went through various forums and finally landed before the Supreme Court in appeal. The Supreme Court referring to the judgment in Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage & Ors., held that in the instant case the lease agreement included no clauses on the fate of the tenancy. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy ...